Committee Work (Non-Member Involvement)
A precise example of how matters arise from the Scotland Act 1998 is the next item on the agenda. This issue was originally raised in the Equal Opportunities Committee and then in the conveners liaison group, which has asked us to consider how non-MSPs might become involved in the work of the Parliament's committees.
Non-MSPs can be involved in a number of ways. However, this matter arises specifically from the feeling in the Equal Opportunities Committee that it is one of the deficiencies of the Parliament, through no one's intention, that there are no members of the Parliament from any of the minority ethnic communities in Scotland. The committee would like to include someone on a permanent basis and is unhappy with the suggestion that it should simply bring in an adviser to assist with specific issues.
The paper shows that the matter has been considered carefully and that the Scotland Act 1998 simply does not allow the co-option of non-MSPs. If we are to promote a solution to the problem, we must either find a mechanism to allow non-MSP participation or persuade the House of Commons to amend the Scotland Act 1998.
The paper suggests that the best way of allowing such participation is to appoint a standing adviser; instead of bringing in an adviser for a specific subject, committees could bring in people permanently if they wanted to. Those people would not be there to deal with token issues from here and there on the agendas. They would be asked to strain all the business of the committee through the perspective that they bring to the committee's business. We think that that would be the best way of allowing the Equal Opportunities Committee to progress.
Do members have any thoughts on that suggestion?
Mechanisms in the Scotland Act 1998 make it difficult to co-opt people on to committees. However, if they are not going to vote in any event, presumably it makes no difference in practice whether they are formally co-opted or are appointed as standing advisers. They would have the same role without voting rights regardless of how they were appointed. There seems no need to go back to Westminster, with all the problems that that would entail, to get a formal co-option procedure. If they are not going to vote, what difference does it make?
Before devolution, there was discussion about this. I was involved in writing a book that suggested that people should be allowed to sit on committees. That was one of the new ideas for this Parliament, but there was political resistance to it. It was not done at Westminster, and the idea of non-members becoming members of committees was frowned on. I do not know what Iain Smith thinks, but I suspect that Westminster might not be too cheery about that principle. There may be no point in allowing co-option if participation can be achieved by another route.
The whole issue of co-opting non-MSPs on to committees gives rise to a problem of democratic accountability. Central to the way in which committees were set up and the vision of the Parliament being run on a committee structure was the fact that the people playing the main part on those committees would be elected MSPs.
I know that the clerks have studied other examples, but I do not think that they found a precedent for what is being suggested. I am not saying that we should always look to precedents to decide the best way for us to go. If we want to be different, we certainly should be. However, we must remember that other Parliaments have had a longer experience than we have, and they may already have considered or tried co-option.
There may also be problems with standing advisers. I favour the appointment of advisers rather than the co-option of non-MSPs, but an adviser should be there to give advice on a specific issue. A general adviser, like most MSPs on the committee, may know a little bit about a lot of things but not much about a specific issue. The benefit of an adviser should be that that person has great knowledge about a specific subject, which would benefit the committee in its discussions.
When the cross-party groups are up and running in a formal capacity, they will be considering specific issues and we may be able to draw from the outcomes of their discussions. However, I urge caution on co-option and on the appointment of general advisers.
I endorse what Janis has said. The proposal raises issues of democratic accountability, which must be considered in more detail before we consider the mechanics of co-option. The Equal Opportunities Committee has put forward its case, but to whom would co-opted people be accountable and whom would they represent? Those are big issues that deserve more detailed examination before any decision is made.
I have a question that I would like to ask in a personal capacity rather than on behalf of the department. I am a little confused by the advice in the paper on the reasons why the Scotland Act 1998 says that we cannot co-opt. It makes reference to the fact that, because section 27 specifically gives rights to the Lord Advocate and the Solicitor General, as the law officers, to participate in the proceedings, it therefore excludes anybody else from being co-opted. I am greatly surprised at that. I would have thought that that section was about giving specific rights to the law officers, rather than about removing the rights of the Parliament to consider whether other people should participate in the proceedings. I am not a lawyer—perhaps Gordon Jackson has a better idea about that.
I suspect that Elizabeth Watson may be able to give us the answer.
Elizabeth Watson (Head of Committee Office, Scottish Parliament):
The advice that we had from lawyers is that one of the basic principles of statutory interpretation is that the specific inclusion of one group entails the exclusion of another. If it was thought necessary to make specific reference to the law officers, any group to which specific reference is not made is excluded.
I may not have expressed myself clearly, but my interpretation of section 27 is that it confers a specific right on the law officers to participate, as opposed to allowing the Parliament to allow them to participate. By conferring a specific right on the law officers, the act does not allow the Parliament to allow other people to participate. I am not sure that that adds up. I am not sure that the intention of section 27 was to exclude other people from participating; it was to confer specific rights to ensure that the law officers could participate.
Committees are part of the proceedings of the Parliament. The idea that unelected people could participate in the proceedings of the Parliament is, generally speaking, a non-starter. The status quo of a Parliament is that only the elected members can be there. That is why the Lord Advocate had to be given a specific right; otherwise, the Parliament could not have allowed him to be there. He is the exception to the general rule that nobody but an elected member can be there. By including him in section 27, the fact that nobody else can come in is made even clearer, as the norm of a Parliament is that no one but elected members can take part in proceedings. The law officers are being given an extraordinary right. If they did not have that right, it would not be a matter of everybody having it; it would be a matter of nobody having it.
Is that legal point clarified?
I am glad that Gordon Jackson has been able to explain it to the rest of us.
The legal point is made in the papers before us, is it not? It is as simple as that. Going back to a previous issue, perhaps those people should be made conveners. That might solve a few problems. [Laughter.]
On a more serious note, Janis Hughes made some relevant points. However, in cases such as the consideration of the McIntosh report by the Local Government Committee, there could be a halfway house, with one or two anchor persons sitting on a committee for the duration of a series of evidence sessions. I have found that we have been all over the place on some occasions when we have taken evidence. Sometimes it would be useful to have someone on hand who has a fuller knowledge of the subject. To bring in an expert in the longer term, rather than for a few days, would greatly benefit the committees.
There are two separate issues here. On the one hand, there are experts on a particular topic or discipline. For instance, if the Transport and the Environment Committee was considering planning, there would be no point in having a general adviser who was pretty ace on the operation of railway systems. That would be within the committee remit but in a separate discipline.
On the other hand, the request from the Equal Opportunities Committee is somewhat different. Its role is to consider everything that the Parliament does, including legislation, from an equal opportunities point of view. The committee's view is that it cannot do that adequately unless it has at least someone on the committee who has the perspective of being a member of an ethnic minority. It is felt that the committee would be better placed to conduct that business if there was such input, as it would allow members to understand every issue in the remit from that standpoint.
That is the point of view from which the Equal Opportunities Committee has made its request. I do not think that, in that context, the proposal is a bad idea. Of course, it could only appoint a representative; one could not seek to represent every minority. However, having someone with expertise in and knowledge of ethnic minority issues would allow the participation of a person who could identify possible problems from the point of view of people who have a different language, culture or religion.
I do not know how the committee would select such a person, and that raises the question of how representative he or she would be. The argument is for some form of virtual representation; it is better to have someone who has an ethnic minority perspective than to have absolutely nobody who has that perspective. Although what is being suggested might not have universal validity, I think that it is valid for the Equal Opportunities Committee.
I completely agree. Equal opportunities should underpin everything we do, not only in the Parliament but in life. I accept that the Equal Opportunities Committee is justified in wanting someone from an ethnic minority group to be there to oversee the issues under discussion and to offer a different perspective. The problem, as Iain Smith asked, concerns to whom that person would be accountable. If that person is acting in an advisory capacity, presumably accountability is not so relevant as it would be if he or she were appointed to the committee.
Can we deal with this situation for one committee? What would we do if another committee made another justifiable request to appoint a non-MSP? Are we being asked to consider how non-MSPs may become involved in the work of any of the Parliament's committees, or are we looking only at the Equal Opportunities Committee? We have to define the point that we are addressing.
The appointment of an adviser of any kind to a committee has to be approved by the Parliamentary Bureau, and the bureau then allows the committee to issue directions to the Scottish Parliamentary Corporate Body for the appointment. No committee could take a decision to appoint any form of adviser that has not been approved by the bureau and by the corporate body.
Under these circumstances, it is suggested that we recommend to the SPCB that the role of general adviser would be appropriate for the Equal Opportunities Committee. The possibility having been established and the principle having been created, it would be a matter for that committee to consider whether it would be reasonable to appoint another general adviser in other circumstances. I suspect that other committees would take the view that they see no need for one, and the SPCB might question the point of having one.
We are talking about a specific perspective, so it can be seen as a rule for one committee, but one with a distinct role, and one which feels that, in executing its role, it currently has a distinct lack. The appointment of a general adviser is a way for us to do something to help within the scope of what is achievable.
I agree that the Equal Opportunities Committee is a special case. There is an issue about the lack of input from ethnic minorities in the Parliament. If the Equal Opportunities Committee is in a position to deal with that, I wish to give the proposal every consideration.
I cannot imagine the Justice and Home Affairs Committee ever doing the same thing. Do we in that committee need another lawyer? The place is crawling with them; we do not need any more. I can see that it would be warranted for the Equal Opportunities Committee, and I think that we should try to facilitate the proposal for that committee as a one-off.
It would not be for us to say that it is a one-off, but for the SPCB.
Of course.
We would be tipping the SPCB the broadest wink that we have looked at the matter, and that we believe that the appointment of a general adviser for the Equal Opportunities Committee would address the problem. We would propose to make the SPCB the guardian of that mechanism, but as we have been asked for our views, we are giving them.
To be clear, the request on this came from the conveners liaison group, presumably because they agreed that co-option may be useful. Are we now saying to the Parliamentary Bureau that we have discussed it, but we feel that co-option may be only an option because of the Equal Opportunities Committee's difficulties? I would be concerned if our report said that if a committee felt that it wanted to co-opt for a particular reason, it could do so.
No, a committee cannot co-opt, and cannot appoint its adviser. It can approach the SPCB with a request to appoint an adviser.
As is explained in the final paragraph of the paper on the involvement of non-MSPs in the work of committees, we are currently operating on the basis that a committee may appoint an adviser for a specific piece of work,
"or for a specific period of time."
By and large, it is expertise or professional discipline which is being imported. The argument is that it is different with the Equal Opportunities Committee, because perspective, which is sought for everything that the committee does, can be brought in. It is not a request for insight from a narrow or compartmentalised discipline. Therefore, the argument is that the Equal Opportunities Committee is different, and that its remit is different.
In essence, we are not making that judgment, but we are suggesting to the SPCB that they consider it.
Should we broaden what we are suggesting? The Equal Opportunities Committee might wish to consider some of the other possible mechanisms for obtaining views. There is the suggestion about expert panels. They could feed information in, perhaps by having one committee member as a reporter, or by giving evidence directly to committees on specific issues. That could be a way of getting the views of specific minority groups.
I think that the Equal Opportunities Committee is aware of that, and is well disposed to doing those things. It felt that it wanted someone on a standing basis, who would always have a remit to think and speak from a certain point of view. What that committee really wanted was to co-opt someone. We cannot do that, but this is the best way in which we can suggest that they have someone to work on a standing basis.
It is absolutely appropriate for the Equal Opportunities Committee to ensure that the perspective imported to its meetings is representative, through speaking to panels of people from ethnic minorities. That might be how the Equal Opportunities Committee ensures that its adviser is fully representative, and it would be for that committee to organise, using all the mechanisms at its disposal.
Are we all happy with that?
Members indicated agreement.